1 Lexington v. Clarke, 2 Vent. 223; Cooke v. Tombs, 2 Anst. 420. See Roberts on Frauds, 111, note 53; Lea v. Barber, 2 Anst. 425, note; Chater v. Beckett, 7 T. R. 201; Thomas v. Williams, 10 B. & C. 664. See also Crawford v. Morrell, 8 Johns. 253; and Mayfield v. Wadsley, 3 B. & C. 361; s. c. 5 Dowl. & Ryl. 228; Wood v. Benson, 2 Cr. & J. 94.
2 Lexington v. Clarke, 2 Vent. 223.
3 Mayfield v. Wadsley, 3 B. & C. 361; s. o. 5 Dowl. & Ryl. 228. See also Wood v. Benson, 2 Cr. & J. 94.
4 Gregg v. Wyman, 4 Cush. 322; Simpson v. Bloss, 7 Taunt. 246; Fivaz v. Nicholls, 2 C. B. 501; Phalen v. Clark, 19 Conn. 421; Jennings v. Rundall, 8 T. R. 335; Fitts v. Hall, 9 N. H. 441; Woodman v. Hubbard, 5 Fost. 67.
1 Lewis v. Littlefield, 15 Me. 233; Phalen v. Clark, 19 Conn. 421; Gregg v. Wyman, 4 Cush. 322; Dwight v. Brewster, 1 Pick. 51; Frost v. Hull, 4 N. H. 153.
2 Dwight v. Brewster, 1 Pick. 51. Parker, C. J., said in this case: "The principal ground of defence to the action was, that by the law of the United States, it was made unlawful for a carrier of the mail to take any letter or packet, and deliver it to the person to whom it was sent, and that such mail carrier was made liable to a penalty for so doing; that if it was unlawful to carry, it must be unlawful to send, and that no action could be maintained for the non-performance of an undertaking that constituted an offence. That no action will lie for damages for not performing an unlawful contract, has been settled by this court in several actions heretofore. The cases of Springfield Bank v. Merrick, 14 Mass. 322; Russell v. De Grand, 15 Mass. 35, and Wheeler v. Russell, 17 Mass. 258, establish this principle, and the English cases are full to this point. The principle settled is, that a party to an unlawful contract shall not receive the aid of the law to enforce that contract, or to compensate him for the breach of it. It is not easy, however, to discern how a party to such contract, who becomes possessed of the property of the other party, with which he is to do something which the law prohibits, can acquire a right to that property. The contract being void, the property is not changed, if it remains in the hands of him to whom it is committed. If he has executed the contract with it, or it has become forfeited by judicial process, or if stolen or lost without his fault, he may defend himself against any demand of the owner in ordinary cases: but if he has it in his possession, he must be liable for the value of it; so that in an action of trover, with proper evidence of a conversion, the plaintiff would undoubtedly prevail."
3 Phalen v. Clark, 19 Conn. 421. vol. I. 47 person in violation of the statute let his horse on Sunday, to be driven to one place, and the hirer drove him beyond that place to another, so as to injure or kill the horse, the owner could maintain trover for the conversion of the animal. The Supreme Court of Massachusetts, in a well-known case,1 formerly held that trover was not maintainable, on the ground that the claim of the plaintiff, although in form for a tort, was in substance to recover damages for a breach of contract; and also because the plaintiff could not prove his case, without showing the illegal contract by which the defendant obtained possession of the horse, so that the conversion of the horse was merely a breach of the contract not to drive him beyond a particular place.2 On the other hand, the Superior Court of New Hampshire,3 in an able and carefully reasoned judgment, held
1 Gregg v. Wyman, 4 Cush. 322.
2 So Wheldon v. Chappel, 8 R. I. 230.
3 Woodman v. Hubbard, 5 Fost. 67. Perley, J., said: "If the owner places his property in the hands of another, to be used temporarily for an unlawful purpose, or in any unlawful way, though the contract which he makes respecting the illegal use is void, he does not forfeit his property in the thing which he has thus delivered to another on an illegal contract. Where the property is intrusted to another to be wholly devoted and appropriated to an illegal purpose, perhaps the law is different; as in the case where goods are shipped to be carried to the public enemy. . . . The property in the horse remained, therefore, in the plaintiff; and it would seem to follow as a necessary conclusion that for a direct, substantial invasion of that right, he might maintain the proper action against the defendant or a third person. In such an action he would not claim by or through the illegal coutract, but would claim, as the general owner of the horse, for an injury done to his right of property, which was antecedent to the contract, and not derived from it, nor defeated by it.
"The action of trover is founded upon property in the plaintiff, and a conversion by the defendant. A conversion consists in an illegal control of the thing converted, inconsistent with the plaintiff's right of property. If one hire a horse to be driven to one place, and voluntarily drive him to another, it is a conversion, and trover will lie. Wheelock v. Wheelwright, 5 Mass. 104.
"This is in accordance with the law in other cases, where the bailee for one purpose diverts the thing bailed to another; as where a carrier uses, or sells, or delivers to the wrong party, the commodity which he received to transport. The circumstance that the property is in the hands of the bailee, with the license of the owner to use it for one purpose, gives no right to use it for another; and the invasion of the owner's right of property is as complete, when the bailee goes beyond his license and duty, as if the control that the owner could maintain trover for the conversion, on the ground that the driving of the horse beyond the agreed place over the property were usurped without any bailment. There can be no doubt, on the authorities, that trover would be a proper remedy in this ease, if the illegality of the contract on which the defendant took the horse into his possession, had not been set up as a defence.